Simplifications for renewable energy, green hydrogen, electricity grid

IN FORCE ON 24 FEBRUARY 2024

This note illustrates the main regulatory provisions introduced by Decree-Law No. 13 of 24 February 2023 on “Urgent provisions for the implementation of the National Recovery and Resilience Plan (PNRR) and the National Plan for Complementary Investments to the PNRR (PNC), as well as for the implementation of cohesion policies and the Common Agricultural Policy.” (OJ No. 47 of 24 February 2023).

The Simplifications Decree-Law entered into force on 25 February 2023 and will be submitted to Parliament for conversion. Within 60 days, the Simplification Decree-Law must be converted into law, otherwise it will lapse.

Here’s what’s new:

ENLARGEMENT OF "SUITABLE AREAS" OPE LEGIS

• Airport grounds, including those within the perimeter of airports on minor islands, are eligible areas ope legis for renewable energy production plants.
• Eligible areas ope legis are areas for wind power plants located 3 km (previously 7 km) or for photovoltaic plants located 500 m (previously 1 km) from assets subject to protection under Part Two or Article 136 of Legislative Decree 42/2004.

CONSOLIDATION OF THE TITLE IN CASE OF SIMPLIFIED ENABLING PROCEDURE (PAS) – PUBLICATION IN THE BUR

• After 30 days have elapsed since declaring the start of works for the activation of the PAS pursuant to Article 6 of Legislative Decree 28/2011, the party interested in realizing the intervention must send a copy of the declaration for publication in the Regional Official Bulletin to the region on whose territory the intervention is located. It will then be published within ten days. The time limits for appeals provided for by law run from the day of publication.

ELIMINATION OF THE VPIA FOR THE VIABILITY OF THE APPLICATION AND THE CONCLUSION OF THE VIA

• Abrogation of letter g-ter) of Article 23 of Legislative Decree 152/2006: it’s no longer necessary to acquire, for the EIA to start the procedure, "the act of the competent superintendent of the Ministry of Culture relating to the prior verification of archaeological interest referred to in Article 25 of the Public Contracts Code, referred to in Legislative Decree 50/2016.”
  The EIA measure is not subordinate to the conclusion of the activities of prior verification of archaeological interest pursuant to Article 25 of Legislative Decree 50/2016 or to the execution of prior archaeological tests (ref: paragraph 2-sexies in Article 25 of Legislative Decree 152/2006).

COORDINAION BETWEEN AU AND VIA PROCEEDINGS

• For environmental assessment procedures in progress when the Simplification Decree-Law enters into force, the single procedure may also be initiated pending the EIA procedure. The EIA may be acquired in the service conference of the single procedure.
• The public water derivation concession is granted as part of the single authorization procedure pursuant to Article 12 of Legislative Decree 387/2003.

SHORTER DEADLINES FOR THE CONCLUSION OF THE AU

• The maximum time limit to conclude the single procedure is 150 days (which also includes the EIA and public water derivation concession procedure, if hydroelectric plants are involved).

LIMITS TO THE COMPETENCE OF THE MIC

• For projects located in protected areas and only if the intervention is not subject to an EIA, the Ministry of Culture participates in the authorization procedure. If the projects are not located in protected areas and the intervention has been submitted to EIA, the Ministry of Culture is not competent (ref, Art. 12 paragraph 3 bis of Legislative Decree 387/2003).

ABROGATION OF CONTERMINOUS AREAS

• Any provision relating to conterminous areas in the guidelines approved by the Ministerial Decree of 10 September 2010 is repealed. The Ministerial Decree is incompatible with the limits of the MIC's jurisdiction as set forth in the amendment to Article 12, paragraph 3 -bis, of Legislative Decree 387/2003. Consequently, paragraph 2 of Article 30 of Decree-Law No. 77 of 31 May 2021, converted, with amendments, by Law No. 108 of 29 July 2021, is also repealed. The MIC can no longer express its opinion in the services conference if the area is not constrained.

SIMPLIFICATIONS FOR HYDROGEN DEVELOPMENT

• Projects for green or renewable hydrogen production plants and related plants from renewable sources take precedence and are assessed by the Technical Commission for Environmental Impact Assessment EIA and SEA (ref Art. 8 paragraph 1 of Legislative Decree 152/2006.
• An EIA of state competence is expected for "Integrated chemical plants for the production of green or renewable hydrogen,” ie plants producing on an industrial scale, by means of chemical transformation processes, of green or renewable hydrogen, in which several production units are functionally connected to each other (point 6a) Annex II of Legislative Decree 152/2006).

PERMITTED GROUND-MOUNTED PHOTOVOLTAIC INSTALLATIONS AND LIMITS ON THE POWERS OF SUPERINTENDENCIES

• Installation, by any means whatsoever, of photovoltaic systems on the ground and of the relative connected works and necessary infrastructures, located in zones and areas destined for industrial, artisan and commercial use, and in landfills or closed and restored landfill lots or quarries or portions of quarries not susceptible to further exploitation, is considered ordinary maintenance activity and is not subject to the acquisition, permits, authorizations or acts of consent, however denominated. The only exception is the expression of the competent superintendence if the intervention (including the related works) falls in an area subject to landscape constraints.
• If the area concerned is subject to a landscape constraint, prior communication must be made to the competent superintendence. If it decides it’s not compatible with requirements referred to in paragraph 2, the superintendence will adopt, within 30 days from receipt of the communication referred to in the same paragraph, a reasoned decision refusing the implementation of the works.

SILENCE OF CONSENT BY THE SUPERINTENDENCE FOR PHOTOVOLTAIC INSTALLATIONS ON BUILDINGS AND WIND POWER PLANTS UP TO 20 KW IN RESTRICTED AREAS

• No permit is required for the installation of wind power plants with a total output of up to 20 kW and a height of no more than 5 m, located outside protected areas or areas belonging to the Natura 2000 Network.
• For photovoltaic and thermal plants on buildings or building structures and wind power plants up to 20 kW, the landscape authorization is issued within 45 days from the date of receipt of the application. After that, if the reasons preventing the application from being accepted pursuant to Article 10-bis of Law no. 241 of 7 August 1990 have not been communicated, the authorization is understood to be issued and is immediately effective. The 45-day time limit may be suspended once for a maximum of 30 days if, within 15 days from the date of receipt of the application, the Superintendency specifically and justifiably states the need to carry out in-depth investigations or to make changes to the installation project.

SIMPLIFICATIONS FOR THE DEVELOPMENT OF RENEWABLES BY FERROVIE DELLO STATO

• High-voltage busbars that are functional for the supply of electrical substations on the railway network can be used by Ferrovie dello Stato Italiane S.p.A. (or its subsidiaries) for the connection of power generation plants from renewable sources.

SIMPLIFICATION FOR THE DEVELOPMENT OF THE NATIONAL TRANSMISSION GRID (NTG)

• National Transmission Grid development projects that have already undergone a Strategic Impact Assessment (SEA) constitute acquired data in the project's EIA procedure.

SIMPLIFICATION FOR VARIATIONS TO EXISTING ELECTRICAL STATIONS

• Variations are always permitted (irrespective of conflict with the urban planning instruments in force) in electrical stations where the buildings are intended exclusively for the location of equipment or technological installations serving the electrical stations themselves.

SIMPLIFICATIONS FOR ENERGY COMMUNITIES AND SHARED SELF-CONSUMPTION

Incentives are granted to renewable energy plants, including agri-voltaic plants, even for power outputs above 1 MW:

• for the share of energy shared by plants and consumption utilities not connected under the same primary substation, as an exception to the requirements set forth in Article 8(2)(a) and (b) of the same Article 8 of the Legislative Decree 199/2021;
• if used within energy communities, whose powers of control are exercised exclusively by small and medium-sized agricultural enterprises, in individual or corporate form, including through their trade organizations, by agricultural cooperatives carrying out activities under Article 2135 of the Civil Code, by cooperatives or their consortia under Article 1(2) of Legislative Decree No 228 of 18 May 2001;
• for energy fed into the grid, grid charges must be paid;
• the electricity produced and fed into the grid by the plants included in these energy communities remains at the disposal of the users of the energy community.

The same provisions and exceptions set forth in the preceding point also apply to other configurations of diffuse self-consumption from renewable sources referred to in Article 30 of Legislative Decree 199/2021, implemented by

• agricultural entrepreneurs, in individual or corporate form
• agro-industrial enterprises, operating in the food industry (Ateco code 10), the beverage industry (Ateco code 11) and the cork processing sector
• agricultural cooperatives carrying out activities referred to in Article 2135 of the Civil Code and cooperatives or consortia thereof referred to in Article 1(2) of Legislative Decree No. 228 of 18 May 2001 regardless of their members

CONCESSION OF PUBLIC AREAS FOR ENERGY COMMUNITIES

• Until 31 December 2025, by way of derogation from Article 12, paragraph 2, of Legislative Decree 28/2011, local authorities in whose territories renewable energy plants financed with the resources of Mission 2, Component 2, Investment 1.2, of the NRP are located, can grant concessions for areas or surfaces in their possession for the construction of plants to meet the energy needs of renewable energy communities. The awarding of the concessions must comply with the principles of competition, transparency, proportionality, publicity, equal treatment and non-discrimination.
• Based on special notices or model notices adopted by the National Anti-Corruption Authority (ANAC), local authorities must publish special notices indicating the areas and surfaces that can be used for the installation of the plants. They will also indicate the minimum and maximum duration of the concession and the amount of the concession fee requested, in any case not less than the market value of the area or surface.
• If several Renewable Energy Communities apply for the concession of the same area or surface area, the number of participants in each Renewable Energy Community and the size of the concession fee offered will be taken into account when identifying the concessionaire.

PHOTOVOLTAIC INSTALLATIONS BY AGRICULTURAL ENTREPRENEURS AFTER THE DEFINITION OF SUITABLE AREAS

• Photovoltaic systems located in agricultural areas are considered instrumental to the agricultural activity and can be freely installed if

• the land is outside protected areas or areas belonging to the Natura 2000 Network;
• falls within the definition of suitable areas pursuant to Article 20, paragraph 1, of Legislative Decree 199/2021 after the issuance of the relevant ministerial decree to be enacted pursuant to the above-mentioned provision;
• built directly by agricultural entrepreneurs or by joint ventures with electricity producers to which the company or branch of company is conferred by the same agricultural entrepreneurs to whom the entrepreneurial management activity is reserved except for the technical aspects of the operation of the plant and the transfer of energy.

• The following conditions must be fulfilled:

• Solar panels must be placed on top of plantations at a height of 2 m or more above the ground, without concrete foundations. They shouldn’t be difficult to remove.
• The implementation should be compatible and integrate with agricultural activities as support for plants or for irrigation systems and partial or mobile protection or shading of the underlying crops for simultaneous implementation of monitoring systems. This should be implemented based on guidelines adopted by the Council for Agricultural Research and Analysis of the Agricultural Economy, in cooperation with the Energy Services Manager (GSE).

• Installation is subject to getting prior consent (in any way) of the owner and the cultivator, against payment, of the interested land.